A short discussion on the effects of the in duplum rule upon commencement of litigation and afterjudgment: A view both 'inside' and 'outside' the National Credit Act

Vessio, Monica

Abstract

It has repeatedly been confirmed by the courts that the in duplum rule forms part of South African law, and more recently section 103(5) of the National Credit Act 34 of 2005 has concretized the rule into statutory form. This note examines the effects of the in duplum rule once the litigation process has been initiated by the creditor and the implications of the rule after judgment is granted against the debtor. Preceding such discussion, however, one needs first to consider whether South Africa still has a common-law in duplum rule, or whether the statutory in duplum rule has ousted the “old” rule in toto. It is submitted that while the statutory rule has superseded the common law rule in terms of all credit agreements that fall within the jurisdiction or ambit of the Act there are those credit agreements that are not regulated by the Act and it is those credit agreements where the (“old”) common-law rule shall apply and regulate the interest component collectable by the creditor via-a-vis the debtor. Thus the two rules must now operate together; both rules applying to different sectors of society; at least society whilst it wears its consumer cap. The codified in duplum rule as will be seen below – affects only natural persons and the juristic entity, as defined by the Act, remains to be protected by the common law rule. It also has been posited that the common-law rule will be applicable to those credit agreements which fall outside the auspices of the Act.

• Journal Article Type: Article
• Publication Date: Jan 1, 2010
• Deposit Date: Oct 28, 2020
• Journal: Obiter
• Print ISSN: 1682-5853
• Peer Reviewed: Peer Reviewed
• Volume: 31
• Issue: 3
• Pages: 725 - 734
• Series ISSN: 1682-5853
• Public URL: https://uwe-repository.worktribe.com/output/6820433
• Publisher URL: https://hdl.handle.net/10520/EJC85374
• Related Public URLs: http://hdl.handle.net/2263/16016